How to allocate a spousal share in an inheritance: pitfalls

How to allocate a spousal share?

Property acquired during marriage is divided into personal and joint property. If the relationship between a man and a woman has not been officially registered, then they cannot have jointly acquired property from a legal point of view. Cohabitants do not have the right to inherit each other's property.

in personal property

The following types of property are considered personal (Article 36 of the RF IC):

• property that the spouse owned before the registration of the relationship;
• property received under a gift agreement or inheritance;
• personal items;
• copyright and intellectual rights;
• prizes and awards.

Personal belongings are included in the estate in full. They can be claimed by both the spouse and other heirs, including parents and children.

Property received through gratuitous transactions is considered personal. The part in the privatized apartment belonging to the deceased citizen is divided among the heirs if the initiator of the procedure was the deceased himself.

jointly owned

Joint ownership includes:

• real estate purchased during marriage, regardless of the amount of funds invested on each side;
• financial assets in credit institutions;
• earnings, income from entrepreneurial or intellectual activity;
• social non-target payments.

Movable or immovable property is included in joint property, regardless of which spouse it is registered in the name of. If one of them dies, then it is divided into two parts. The first goes to the living spouse, and the second is included in the inheritance mass and divided between relatives by law.

The property regime of the spouses can be changed by concluding a marriage agreement. The content of the document is regulated by Art. 42 IC RF.

Division of inherited property during divorce

Now let's talk about the inheritance that the spouse did not leave after his death, but received from a deceased relative. Upon divorce, the mandatory division of property between the spouses begins.

Everything that was acquired jointly is “sawed” in half, but what does the law say about the inheritance received? The other half cannot lay claim to such material assets, because they were transferred free of charge.

The received inheritance is a priori equal to the donated one, and the heir has the right to dispose of such property at his own discretion. There are exceptional cases in which, through the efforts of the other half, the value of the inheritance was increased several times.

Here we are most often talking about housing, plots of land or vehicles. Using funds from the family “piggy bank,” the apartment was renovated, a good-quality residential building was erected on a piece of land, or an old car was patched up to the highest standard.

In such situations, the spouse may not count his share, but participation in the process of reconstruction, repair or construction will definitely have to be proven. A completely different situation arises with the inheritance that both spouses received from a beloved relative of one of them. Here they both have equal rights, so it makes sense to defend them.

Allocation of the spousal share after the death of the spouse

To allocate a marital share after the death of a spouse, you will need to submit an application to a notary. There are situations when the procedure can only be completed through the court.

through a notary

The widow or widower of a citizen addresses the official. It is possible for a former spouse to submit an application if the procedure was not initiated after the divorce.

The citizen’s action algorithm should be as follows:

1. Contacting a notary office.
2. Preparation of documents.
3. Payment of state duty.
4. Compiling and submitting an application.
5. Obtaining a certificate.
6. Contacting Rosreestr for re-registration of property.

The notary usually offers a ready-made application form.

The document must contain the following information:

• name of the official;
• information about the applicant;
• information about the deceased spouse, including details of the death certificate;
• information about marriage;
• information on jointly acquired property;
• applicant's requirements;
• list of applications.

Download a sample agreement on the allocation of a marital share from the inheritance estate

Download a sample application for refusal to allocate a spousal share

Download a sample application for the allocation of a share in the joint property of spouses

Copies of the following documents must be attached to the application:

• Marriage certificate;
• document on the death of a citizen;
• identification;
• title documents for property.

When submitting an application by a representative, a notarized power of attorney is required.

Based on the application, the notary issues a certificate of allocation of the marital share. To receive a document, a citizen does not need to wait 6 months, as is the case with inheritance. The certificate can be issued on the day of application. It is the basis for re-registration of property in the name of a widow or ex-spouse.

A notary can independently transfer documents to Rosreestr for re-registration of property rights in electronic form. When re-registering real estate, a citizen will be able to receive a printed extract from the Unified State Register of Real Estate from an official in a few days.

through the court

Going to court will be necessary in the following cases:

• the spouse missed the deadline of 6 months from the date of death of the citizen;
• the applicant wants to allocate more than half of the total property;
• the property is registered in the name of the deceased, and the heirs are going to include it in the estate.

When going to court, you must pay a state fee. Its size is calculated depending on the value of the property (Article 333.19 of the Tax Code of the Russian Federation).

The following documents must be attached to the statement of claim:

• divorce or marriage certificate;
• title documents for property;
• death certificate;
• receipt of payment of state duty;
• loan documents.

The claim is filed in court at the place of residence of the defendant. After considering the application, the judge sets a hearing date. The consideration of the case lasts up to 2 months. A court decision can be appealed within 30 days after it is made. If there are no objections, then it comes into force.

Ownership documents can be reissued based on a court decision.

Deadlines

The law does not limit the period for allocating the marital half of the property, but it is better if the copyright holder does this as early as possible. Delaying the process may threaten the loss of jointly acquired assets in kind, for example, if they are sold by heirs. And although this does not cancel the purpose of the compensation payment, receiving it may not be as easy or as quickly as the rightful owner would like.

As for the obligatory share of the inheritance due to the disabled husband or wife of the deceased, it must be accepted within 6 months after the death of the spouse.

What are the differences between a mandatory share and a spousal share?

The obligatory share in the inheritance is established by Art.
1149 of the Civil Code of the Russian Federation. It is part of the property that is given to relatives, even if they are not named in the will. Spouses are entitled to it if they:

• declared incompetent;
• have a disability;
• were dependent on the deceased.

Unlike the marital share, the property of a deceased citizen may be personal and not jointly owned.

Attention! The obligatory part must be at least half of what the citizen would receive upon inheritance by law.

Adjustment of the surviving spouse's share of the inheritance

Both spouses have equal property rights. But there are situations related to the state of health or the unlawful behavior of a spouse, when the size of the allotted portion during the division of common property can be changed.

Reasons for adjustment according to Article No. 39 of the Family Code:

• the presence of a couple of minor children;
• one of the partners is incapacitated;
• because of the husband or wife, the financial condition of the family suffered.

The surviving spouse's share of the inheritance is reduced if he led a lifestyle harmful to the family - regularly consumed large quantities of alcoholic beverages, intoxicating drugs that were addictive, or lost the family budget in gambling. There may also be an adjustment if the spouse avoided earning money and did not participate in family life.

Questions from our readers

Is it possible to refuse the spousal share?

One of the spouses may renounce his part on the basis of Art. 236 of the Civil Code of the Russian Federation. To do this, you need to write a corresponding application to the notary at the place where the inheritance was opened. If the spouse issues a waiver, then the property will be divided between the heirs according to the law in equal shares. In this case, the citizen has the right to claim inheritance on a general basis.

Is it possible to challenge the spousal share?

The heirs do not always agree with the surviving spouse’s application for the allocation of his part of the property. In this case, you can file a claim in court at the defendant’s place of residence. Any interested parties have the right to initiate the procedure. The defendant is the spouse of the deceased citizen. The claim must state the reasons why the property cannot be considered jointly owned. For example, if the property was acquired by the deceased before the formalization of the relationship or was transferred to him by gift. The state fee for filing a claim depends on the value of the property.

Features of inheritance by spouses

As noted above, a citizen has the right to inherit from a deceased spouse on several grounds, and they differ depending on the order of inheritance.

By law (without a will)

If the procedure defined by law (Chapter 63 of the Civil Code of the Russian Federation) was recognized as legal for a given inheritance case, then the widow or widower of the testator has a preferential right to receive part of his property. This circumstance is defined and supported by Art. 1142 of the Civil Code of the Russian Federation, the content of which indicates that the spouse belongs to the first line of inheritance. This situation is shared with him by the parents of the deceased and children, both joint and other officially recognized ones, including adopted ones.

By will

The existence of a notarized will can radically change the status of an official family member and the order of inheritance established by law. By drawing up an act of expression of will, every capable citizen has complete freedom to choose the future owners of his property and distribute it among them. It is thanks to this opportunity that the widowed spouse can inherit after her husband or wife:

• all property of the deceased;
• its certain part (not necessarily equal to the shares of the remaining successors);
• the right to use a specific object of inheritance;
• receipt of a specified item, a lump sum of money, or regular payments from the new owners of the property.

But a will can also deprive the legal heir of the right to accept the due share. In this case, the testator’s husband or wife is left only with the property that he acquired during the marriage together with the now deceased.

Underwater rocks

Citizens may encounter problems when allocating their marital share:

1. Often, the spouses of a deceased citizen have a question about how to divide common and personal property. It is necessary to turn to family law, where these concepts are clearly distinguished.
2. Citizens may have problems registering their share through the court. It is recommended that you consult with an attorney before filing a claim. A specialist will help you correctly draw up an application, indicate common ownership in it, and provide strong evidence of joint ownership of property.
3. A citizen can refuse both the marital share and inheritance according to the law on a general basis. The document can be executed at the same time by a notary.
4. To open an inheritance case, 6 months are given from the date of death of a person. If the spouse misses this deadline, he may also lose the right to allocate the marital share. In this case, you can go to court with a request to restore it. In this case, it is necessary to provide compelling reasons for missing the deadline and provide evidence.

Settlement agreement

The content of the marital share can be determined by agreement with the remaining heirs. This is done as follows:

1. The surviving spouse receives a certificate of ownership of the share in the common joint property of the spouses.
2. At the notary, the widower/widow and the heirs draw up an agreement to determine the composition of the allocated marital share.

The parties to the agreement are the heirs and the co-owner of the property common to the testator. In the document they state:

• Full name of the surviving spouse, heirs, testator (his date of death);
• composition of jointly acquired property indicating the value of the objects;
• a list of assets included in the marital share and included in the inheritance estate;
• additional notes.

Sample settlement agreement

As an example of an agreement on the allocation of a marital share, you can consider this sample:

Solutions in case of controversial situations

It is not uncommon for disputes to arise between relatives during the distribution of inheritance. Among the conflict cases involving a spouse, it is worth highlighting the problem of determining whether property belongs to the category of jointly acquired property. As an example: a husband gave a vehicle to his wife, but the process of transferring the object was not properly formalized - there is no deed of gift. As a result, after the death of her husband, the wife can only claim half of the car, although she considers the property entirely her own for obvious reasons.

To resolve disputes, the assignee can use one of two provided methods. The first is to reach a compromise with dissatisfied relatives and draw up an agreement in writing, indicating the conditions for the division of property. The second is more relevant, since in practice it is used much more often. Its essence is to resolve the dispute by going to court.

Each of the current options is worth examining in more detail.

Concluding an agreement with relatives

The provisions of the Civil Code do not limit the right of citizens to freely conclude contracts between individuals. The key condition is that the provisions of the agreement do not contradict the provisions of the law. Therefore, the heirs can take advantage of the provided opportunity and set their own conditions for the division of the inheritance mass.

The agreement must be drawn up in writing. In this case, you will have to obtain certification from a notary. In the absence of a specialist’s signature, the document will not have legal force. Using this option, the marital share can also be determined. The content and form of such an agreement are not specified by law.

Peaceful resolution of the conflict is the least expensive method and the most effective. However, in practice it is rarely implemented due to the reluctance of relatives to meet other heirs halfway to resolve controversial issues.

Trial

Litigation is the most common and most expensive option. To initiate legal proceedings, you will have to file a claim in the prescribed form. If you neglect the need to comply with regulatory requirements, the request will not even be accepted for consideration. Therefore, it is important to take into account the provisions that are reflected in the content of the application:

• the name of the judicial institution where the claim is sent;
• personal information about the participants in the proceedings (plaintiff and defendant): full name, address where the citizen lives and is registered, contact information;
• cost of claims - the price of the property established by an independent expert is indicated;
• the descriptive part includes the circumstances of the conflict situation. Thus, you will need to indicate the date when the spouse died, a list of disputed property and the claims of dissenting persons;
• claim. They are formulated as: the allocation of the marital share from the inheritance mass and the assignment of the plaintiff’s right to this property;
• a list of documents attached to the application to confirm the content of the claim;
• date of application;
• applicant's signature.

When filing, you will need to pay a state fee, the amount of which is determined by the value of the claim.

The judge's verdict largely depends on the plaintiff's preparedness to substantiate his position. To increase the likelihood of a positive decision, it is recommended to use legal support. You will have to spend extra money on the services of a specialist, but his work can significantly help in achieving the goal.

Claim by a creditor for division of marital property

As follows from Part 1 of Article 45 of the IC of the Russian Federation, debt collection under a credit or other obligation is carried out by foreclosure on the property of the debtor himself. There are exceptions to this rule, namely, if there are reasons to believe that this property will not be enough to satisfy the requirements (repayment of debt), the creditor has the right to send an application to the court, in the pleading part of which indicate the need to allocate the debtor’s share in the common property, as well as to collect debt from this property.

The above application is considered according to the rules of the Civil Procedure Code. Magistrate judges consider claims with the amount of claims less than five hundred minimum wages. Claims exceeding this limit are filed in district court.

Please note that this category of disputes is subject to a general statute of limitations of three years, which is calculated from the moment the party learned, or should have learned, that his rights were violated. In this case, from the moment the applicant learned about the existence of such property.

Important : before a decision is made on a dispute about the division of property of spouses, the court, at the request of a party to the dispute, may seize the disputed property (a ban on registration actions).

If there is a will

If we are talking about inheritance in the manner set out in the will, the division of the inheritance will occur differently. Here everything is decided by the will of the deceased, recorded by him during his lifetime. A person has the right to transfer his possessions to those persons who, in his opinion, are worthy of it. Kinship will not play any role in this case. For example, a husband can deprive his wife of any rights to his own property and transfer it to his children.

However, it is worth clarifying here that the spousal share in the inheritance under a will is formed in the same manner as in the absence of a posthumous disposition (paragraph 1150 of the Civil Code). Simply put, half of the community property goes to the surviving spouse in any case. It is in principle impossible to deprive a person of this legal part. The widow or widower, one way or another, receives half of what was acquired during the marriage.

It happens that when drawing up an administrative document, a person does not take into account the right of the marriage partner to the marital share and bequeaths the property to someone in full. For example, an apartment. Such cases require consideration in court, because the posthumous will needs to be challenged, especially since there are legal grounds for this. A peace agreement between successors is also allowed.

Changing the share size

Under standard circumstances, the joint property of the spouses is divided 50 to 50. At the same time, the provisions of the law define situations when the size of the share can be adjusted either downward or upward. Thus, Article 39 of the family law defines the following points as grounds for change:

• spouses have children together who have not reached the age of majority;
• the surviving spouse is declared disabled;
• intentional infliction of damage by the surviving spouse on family members, including the testator.

As an example of the last reason: excessive consumption of alcoholic beverages or taking drugs. Also, the court may decide to reduce the share if gambling addiction is confirmed, with an indifferent attitude towards family members.

What papers will you need to prepare?

Documentary support of the application for the issuance of a certificate of formation of the spouse’s share involves the transfer into the hands of a notary of a number of papers, without which the procedure simply will not take place.

The applicant will need to prepare:

1. identification;
2. death certificate of the marriage partner;
3. a certificate indicating the fact of registration of the family union with the civil registry office;
4. documentation for joint property - title papers, technical passports, certificates from the Unified State Register of Real Estate, appraisal reports;
5. marriage contract, if the paper was drawn up earlier;
6. consent from the guardianship authorities if the deceased has children under 18 years of age.

The documents provided are thoroughly checked. In particular, the data contained therein and the information specified in the application are verified. Only after the notary has verified the legality of the requirements and the reliability of the information, will he prepare a certificate of assignment of the marital share.

The marital share, which is due to the husband or wife who survives the marriage partner, is allocated without fail and is exactly half of the property acquired jointly. This part becomes the property of the widower or widow in full and is not included in the inheritance. However, renunciation of such a share is permitted, but only with the consent of the legal owner, confirmed by a corresponding statement. Also, the size of the mandatory part can be changed, but for such a procedure there must be extremely compelling reasons.